SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	
IN THE NATIONAL CONSUMER TRIBUNAL
HELD IN CENTURION
 Case Number: NCT/110467/2018/75(1)(b)CPA
In the matter between 
BRAD GREEN CARS CC	APPLICANT  
and 
RUDOLPH BREYTENBACH 	RESPONDENT  

IN RE:

RUDOLPH BREYTENBACH	APPLICANT  
and 
BRAD GREEN CARS CC	RESPONDENT  

Coram:		
Prof Tanya Woker – Presiding member
	
APPLICATION FOR LEAVE TO REFER
JUDGMENT AND REASONS 
	
INTRODUCTION
1.	The Applicant is Rudolph Breytenbach (hereinafter referred to as “the Applicant”), an adult male residing at [….]. At the hearing the Applicant represented himself and was assisted by his fiancé, Ms Brink, who explained to the Tribunal that she had been responsible for drafting many of the documents which were submitted to the various entities.  

2.	The Respondent is Brad Green Cars CC (registration number: CK 1994/005345/23, a close corporation duly registered and incorporated in accordance with the company laws of the Republic of South Africa) with registered address at 127 Van Riebeek Ave, Edenvale (hereinafter referred to as “the Respondent”). At the hearing the Respondent was represented by Advocate Felgate

THE APPLICATION

3.	The application brought before the Tribunal is in terms of section 75(1)(b) of the Consumer Protection Act, 2008. The Applicant lodged a complaint with the National Consumer Commission (NCC) and received a notice of non-referral in response. The Applicant is now applying for leave from the Tribunal for the complaint to be referred directly to the Tribunal.

4.	In accordance with section 75(5)(b), only the application for leave is being considered at this stage by a single member of the Tribunal.

5.	This judgment is based on the documents before the Tribunal as well as information provided by the parties at the hearing held in Centurion on 17 January 2019.

BACKGROUND

6.	The Applicant purchased a used convertible 2008 BMW 135i motor vehicle (“the vehicle” or “the BMW”) from the Respondent on 2 December 2016 for R219 995.

7.	In order to purchase the vehicle, the Applicant traded in his 2006 Renault (“the Renault”).  The trade-in vehicle was set off against the purchase price of the BMW in the form of a deposit in the amount of R50 000.

8.	The remaining amount of R186 885 (which included R5000 licence and registration costs as well as a warranty cost of R11 890) was financed through ABSA Bank.

9.	The Applicant took delivery of the vehicle on 2 December 2016.

10.	The Applicant alleges that the vehicle has a number of defects and that he informed the Respondent of this on 5 December 2016.  There appears to have been a fair amount of communication between the parties regarding the defects and some of those defects have been attended to, whilst others have not.

11.	The important issue to note, especially for the purposes of a claim under the CPA, is that on 27 January 2017 (less than two months after the purchase of the vehicle) the Applicant requested that the Respondent cancel the contract and refund him his purchase price.  In his letter to the Respondent, the Applicant explains:
The vehicle was purchased last year and to date nothing has been fixed.  They keep pushing me to drive the vehicle promising to do the repairs at a later stage.  This is a risk and more damage could come from driving the vehicle in such a condition.  I purchased a vehicle which had been standing until now. 

12.	On 30 January 2017 the Respondent sent a letter to the Applicant in which it stated that it was not responsible for any repairs to the vehicle except for repairs to the water pump and it was not prepared to cancel the agreement because the vehicle was handed over “in perfect working condition with a roadworthy certificate”.

13.	On 31 January 2017 the Applicant submitted a request for assistance to the MIOSA.
  
14.	The MIOSA considered sections 55 , 56 and 20 of the CPA and on 28 March 2017, the MIOSA sent a letter to the Respondent in which it set out the following finding:
The Motor Industry Ombudman of South Africa has assessed the submissions made by both parties and is of the opinion that the vehicle in question did not meet the requirements as per the Consumer Protection Act of 2008 Section 55 subsection (2), 56 subsection (2) and section 20.

15.	The MIOSA informed the Respondent that it should collect the BMW from the Applicant at their own risk and expense and should refund him the “money which he paid less the cost of usage”.

16.	The MIOSA gave the Respondent 15 business days from receipt of the notification to respond to its findings. 

17.	The Respondent agreed to take the BMW back but only on condition that the Renault be returned to the Applicant and that the Applicant pay R24 000 which the Respondent alleged it had spent fixing problems with the Renault.

18.	The Applicant explained that he did not have R24 000 and so he approached the NCC for assistance.  In the complaint form the Applicant explained that he
had a complaint dealt with at MIOSA and the ruling was issued.  But the supplier/respondent has not complied to the ruling and therefore we require the assistance of the NCC in going forward.

19.	On 13 June 2018, the NCC issued a notice of non-referral stating that the complaint does not allege any fact which, if true, would constitute grounds for a remedy under the Consumer Protection Act.  A perusal of the report attached to the notice of non-referral further establishes that the Commission is of the view that 
The Commission does not have jurisdiction to pursue matters related to compensation for damages and disputes of facts.  As a result, we cannot pursue your matter further.
 
THE APPLICANT’S CASE

20.	At the hearing the Applicant confirmed that he is of the view that he was sold a defective vehicle. 
 
21.	The sections of the CPA which the Applicant is relying upon include the following:

(1)	section 55 – the consumer’s right to safe, good quality goods in that he was sold a defective vehicle;
(2)	Section 56 – the consumer’s right to an implied warranty of quality in that the vehicle exhibited defects within six months after he purchased the vehicle;
(3)	Section 20 – the consumer’s right to return goods; and
(4)	Section 56 (2) – his right to return the vehicle to the Respondent and claim a full refund of his purchase price.

22.	In the documents before the Tribunal and at the hearing the Applicant listed a number of defects with the vehicle, in particular the fact that he discovered, after purchasing the vehicle, that the rims of the tyres were buckled which caused the vehicle to become unstable when driven at a speed of 120kms.
 
THE RESPONDENT’S CASE

23.	The Respondent has argued as a point in limine that the manner in which this application has been brought is highly prejudicial to the Respondent; as it is forced to respond to the application; and provide an answering affidavit; in circumstances where the Applicant has simply made bare allegations; that the Respondent has contravened the CPA; without providing any evidence of these contraventions.

24.	The Respondent nevertheless also stated that at the time the vehicle was sold to the Applicant the vehicle was in full running order.
 
25.	The Respondent is of the view that if the vehicle is defective, these problems were caused by poor driving on the part of the Applicant.

26.	The Respondent stated that the vehicle left the dealership in a proper working condition with a road worthy certificate.  The Respondent alleged that certain repairs to the vehicle were carried out but that it was not responsible for repairing the damage to the rims of the vehicle’s tyres as the rims were not damaged when the vehicle was sold to the Applicant.  

27.	The Respondent acknowledged the ruling by the MIOSA but stated that after the ruling further correspondence took place in which the MIOSA agreed that the Applicant needed to take back the Renault; in order to place the parties in the same positions they would have been in prior to the sale. The Applicant refused to take the Renault back; and so; communication between the parties broke down; and the Applicant referred the matter to the NCC.

THE LAW APPLICABLE TO THE APPLICATION

28.	The question now before the Tribunal is whether leave should be granted for the matter to be heard by the Tribunal.  The Tribunal can only assess the reasonable prospects of success by considering whether the CPA finds application in the dispute and may therefore be adjudicated on by the Tribunal.
 
29.	In this regard it must further be borne in mind that the Tribunal is merely considering the application for leave at this stage; and is not engaging in a determination of the merits of the main dispute between the parties. At this stage the Tribunal is merely assessing whether the Applicant has made out a case which should be considered by the Tribunal.

30.	In determining whether the Applicant should be granted leave to refer the matter to the Tribunal, the Tribunal must consider the requirements for the granting of “leave”. A similar application can be found in the High Court practice, where an Applicant applies for leave to appeal a judgment. It was held in the Westinghouse Brake and Equipment (Pty) Ltd – matter, as cited above, that -

“in applications for leave to appeal properly brought before the appropriate court in terms of the old sec 20, read with sec 21 as it then was, the only relevant criteria were whether the applicant had reasonable prospects of success on appeal and whether or not the case was of substantial importance to the applicant or to both him and the respondent.”  

31.	The Tribunal, when considering whether to grant the Applicant leave to refer or not, uses the same test as applied in the High Court for applications for “leave” ..  

32.	The Tribunal will therefore consider the following factors:
(1)	whether the matter is of substantial importance to the Applicant; and
(2)	the Applicant’s reasonable prospects of success with the referral.

33.	Based on the lengths the Applicant has gone to in order to attempt to resolve the complaint with the Respondent, and then to lodge the complaint with the MIOSA, the NCC, and ultimately the Tribunal, it is clear that the matter is of substantial importance to the Applicant. The Applicant returned to the Respondent within three days of purchasing the vehicle and has consistently followed up his complaints. He attempted to set the contract aside within two months of purchasing the vehicle. I find therefore that the requirement that the matter is of substantial importance to the Applicant has been met.

34.	The second question, as to the reasonable prospects of success must be answered by considering whether the substance of the Applicant’s complaint falls within the ambit of the CPA without deciding on the merits of the matter. 

35.	The Applicant, upon taking delivery of the vehicle, immediately noted that there were problems with the vehicle and addressed these with the Respondent. 

36.	The Applicant has made a concerted effort to identify which sections of the CPA he believed were applicable to the matter and may have been contravened by the Respondent.

37.	Although the Applicant has not formulated his case against the Respondent clearly on the papers within the ambit of the CPA, I note that he is unrepresented and has tried his best, assisted by his fiancé, to apply his mind to the issues.  

38.	Section 4(2) of the CPA also provides guidance as to the Tribunal’s approach when considering cases in terms of the CPA –

Realisation of consumer rights
 (2) In any matter brought before the Tribunal or a court in terms of this Act—
(a) the court must develop the common law as necessary to improve the
realisation and enjoyment of consumer rights generally, and in particular by persons contemplated in section 3(1)(b); and
(b) the Tribunal or court, as the case may be, must—
(i) promote the spirit and purposes of this Act; and
(ii) make appropriate orders to give practical effect to the consumer’s right of access to redress, including, but not limited to—
(aa) any order provided for in this Act; and
(bb) any innovative order that better advances, protects, promotes and assures the realisation by consumers of their rights in terms of this Act.

(3) If any provision of this Act, read in its context, can reasonably be construed to have more than one meaning, the Tribunal or court must prefer the meaning that best promotes the spirit and purposes of this Act, and will best improve the realisation and enjoyment of consumer rights generally, and in particular by persons contemplated in section 3(1)(b).

39.	It is a common occurrence in the Tribunal that parties are not represented by legal counsel. It is indeed within the very nature of the Tribunal, as set out in Sections 4(2) of the CPA, that the Tribunal offer a forum where unrepresented parties are able to state their case without the need for carefully drafted legal argument and to receive redress where appropriate. 

40.	The Applicant in this matter is unrepresented. Allegations have been made against the Respondent regarding the condition of the vehicle when he took delivery of it.  It is clear to me that the Applicant has made a concerted effort to apply his mind to possible contraventions of the CPA and that a case can be argued in this regard. 

41.	In addition, the MIOSA made a finding that the Respondent should take the vehicle back. The MIOSA is the accredited industry ombudsman appointed in terms of section 82 (6) of the CPA that is responsible for the resolution of consumer disputes in the motor vehicle industry.  Its code of conduct applies to all those in the industry including the Respondent.  

42.	The Applicant, based on the allegations made and the facts before the Tribunal, many of which are common cause, deserves an opportunity to argue the matter on the merits before a full Tribunal.  Where there are disputes of fact, these disputes can be resolved through the presentation of evidence by both the Applicant and the Respondent. Both parties will have a full opportunity to argue their cases and to cross-examine the witnesses called by the other party.

43.	If the Tribunal finds that the Respondent has engaged in conduct that is prohibited under the CPA, the Tribunal will be entitled to impose any order that gives effect to a consumer right as contemplated in the CPA.

44.	In addition, where the Applicant wishes to claim damages, the Chairperson of the Tribunal may, on request, issue a notice certifying that the conduct constituting the basis for an action has been found to be prohibited conduct in terms of the CPA.

45.	Such a certificate is sufficient proof of its contents and this will enable the Applicant to proceed to the civil courts to claim his damages.  

46.	In the case of Joroy 4440 CC t/a Ubuntu Procurement v Potgieter N.O. and Another the court held that consumers are obliged to follow the procedures set out in section 69 of the CPA before approaching the civil courts for relief.  This means that before the Applicant can approach the civil courts for any damages he must exhaust his remedies under the CPA; this includes approaching the Tribunal for a hearing.

CONCLUSION

47.	I find that the Applicant has satisfied the requirements for the granting of leave in terms of Section 75(1)(b) of the CPA. 

ORDER

48.	Accordingly, I make the following order:

(1)	The application for leave from the Tribunal is granted; and 
(2)	No order is made as to costs.

DATED  21 January 2019

[signed]
Prof T Woker
Presiding Member